Voss v Ipkendanz

Background 3 The Local Court proceedings were commenced by statement of claim filed on behalf of Mr Ipkendanz on 4 August 2006. The statement of claim pleaded that he and Mr Voss were the owners of adjoining properties on or near the corner of Cascade and Gurner Streets, Paddington. On the southern boundary of Mr Voss' property was a retaining wall. In about 2004 it was discovered that the wall was in a state of disrepair and was structurally inadequate. Mr Ipkendanz sought to have Mr Voss rectify the wall, and he himself took certain measures to mitigate against the risk of damage that might be caused by it. Eventually, on 4 January 2006, following intervention by the Woollahra Municipal Council, Mr Voss effected the necessary repairs. 4 By the statement of claim, Mr Ipkendanz alleged that, between July 2004 and the date of the repairs, the wall constituted a nuisance that interfered with his reasonable use and enjoyment of his property, and that, by failing to maintain and/or repair the wall prior to that date, Mr Voss was in breach of his duty of care to Mr Ipkendanz, as a consequence of which Mr Ipkendanz suffered loss and damage, including the cost of mitigating precautions. He accordingly claimed damages. He quantified the damages claimed at approximately $54,000. 5 The proceedings were heard in the Local Court over six non-consecutive days, beginning in November 2007, and ending on 1 August 2008, when final submissions were made. Judgment was delivered on 3 October 2008, in favour of Mr Ipkendanz. 6 During the course of the proceedings, certain documents were tendered on behalf of Mr Ipkendanz. The documents relevant for present purposes were invoices (in two categories) said to be relevant to the quantification of damages. Specifically, these were invoices, firstly from an architect, and secondly, for the erection of scaffolding (presumably for the repair measures taken in the first instance by Mr Ipkendanz). The Magistrate rejected each of these. He gave as his reasons that the former (the architect's invoice) did not come within the business records exception to the hearsay rule (Evidence Act 1995, Pt 3.2, especially s 69) and that the latter (the scaffolding invoices) were not, on their face, relevant to the disputed boundary. 7 The argument in this Court proceeded on the foundation that, in each case, the evidence was the evidence upon which Mr Ipkendanz sought to rely to establish the quantum of his damages. Its rejection meant that his case on damages was, to that extent, deficient, and he was disadvantaged. Mr Voss was correspondingly advantaged. 8 This is not to conclude that the evidence was wrongly rejected. I am not in any position to reach such a conclusion. Rejection of the evidence is the subject of the notice of cross-appeal but no separate argument was directed to it. 9 On 10 March 2008 counsel for Mr Ipkendanz raised again the issue of the proposed evidence that had been rejected, and, in effect, re-tendered the documents. They were again rejected. On 16 April, in a published judgment, the Magistrate gave as his reasons for rejection: "● I am satisfied that following my initial ruling [counsel for Mr Ipkendanz] sought to persuade me to admit the document the course of the hearing [sic] and his various applications were properly dealt with;